People v Sarihasan

[*1] People v Sarihasan 2010 NY Slip Op 51870(U) [29 Misc 3d 1218(A)] Decided on October 25, 2010 Supreme Court, Suffolk County Doyle, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2010
Supreme Court, Suffolk County

The People of the State of New York,

against

Mina Sarihasan, Defendant.



00265A-2009



THOMAS J. SPOTA,

SUFFOLK COUNTY DISTRICT ATTORNEY

By: ADA Megan O'Donnell

200 Center Drive

Riverhead, New York 11901

DEFENDANT'S ATTY:

SALVATORE J. MARINELLO, ESQ.

55 Mineola Boulevard

Mineola, New York 11501

Robert W. Doyle, J.

Defendant had moved for an order pursuant to CPL § 440.10 vacating her judgment of conviction upon the ground that she was denied the effective assistance of counsel. Specifically, defendant asserted that she was not informed of certain viable defenses to the charges against her and that her attorney had failed to inform her of the immigration consequences of her conviction. By order dated June 21, 2010, defendant's motion for an order vacating her judgment of conviction was granted to the extent that a hearing was held to make factual determinations regarding her claim of ineffective assistance of counsel solely as it related to her immigration status. On August 23, 2010, a hearing was held before the Court. At the conclusion of the hearing, both sides were given an opportunity to submit written arguments in support of their respective positions. [*2]

Defendant was originally charged under Indictment No. 00736-2005 with one count each of Criminal Possession of a Weapon in the Second Degree (a Class C felony) and Conspiracy in the Fifth Degree (a Class A misdemeanor) along with two violations of the Vehicle and Traffic Law (Failure to Signal and Tinted Windows). The charges resulted from defendant being stopped by police while driving her father's motor vehicle and in possession of a loaded pistol. On August 3, 2009, defendant plead guilty to one count of Attempted Criminal Possession of a Weapon in the Second Degree in full satisfaction of the indictment, waived her right to appeal and was sentenced on September 29, 2009 to six months incarceration and five years post release supervision.

In May 2010, defendant moved to vacate her judgment of conviction upon the ground, inter alia, that her then-attorney did not advise her of possible defenses to the charges against her and that her plea of guilty would subject her to deportation. In her motion papers, defendant alleged that her attorney specifically advised her that her plea of guilty would not cause her to be deported. She further asserted that the Court did not make adequate inquiry of her during her plea allocution. Defendant claimed that the Court did not inquire whether she was a citizen of this country and consequently never advised her of the dangers she might face regarding her immigration status.[FN1]

In opposing defendant's motion, the People alleged not only that possible defenses were discussed with defendant by prior counsel but also that defendant's case was on the Court's calendar on July 28, 2009 and adjourned at the request of defendant until August 3, 2009 so that she could consult with an immigration attorney.

In fact, at some point during her term of imprisonment at the Suffolk County Jail, she became aware of an "immigration hold." At the conclusion of her sentence in Suffolk County, she was transported to the custody of the immigration authorities and is presently involved in deportation proceedings in Boston, Massachusetts.

Since defendant contends that she would not have pleaded guilty if her attorney had not advised her that such a plea would not affect her immigration status, defendant's claim can form the basis for vacating the plea (see, People v. McDonald, 1 NY3d 109, 769 NYS2d 781). In that case, the Court of Appeals held that an affirmative mis-representation by counsel concerning the effect of a guilty plea on a defendant's immigration status "falls below an objective standard of reasonableness" (supra , at p. 115). Consequently, when a defendant alleges that based on this incorrect advice, she entered her plea of guilty and further alleges that but for counsel's alleged error, she would not have pleaded guilty, she has made a prima facie showing of prejudice requiring this Court to set this matter down for a hearing (see, People v. McDonald, supra at p. [*3]115).[FN2]

It must be noted that in determining whether or not defendant was denied the effective assistance of counsel, the Court must ordinarily first determine whether or not the representation "fell below an objective standard of reasonableness" (Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052). In addition, the Court must also determine whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland v. Washington, supra at p. 694).

At the hearing, defendant called two witnesses as part of her direct case along with one rebuttal witness. The People called two witnesses. In addition, the parties stipulated regarding the testimony of a third witness for the People, Assistant District Attorney Anne Mayer.

Initially, it must be noted that during the course of the hearing, present counsel for defendant raised an issue regarding whether or not defendant had waived her attorney client privilege with respect to her communications with prior counsel by making this motion to vacate her judgment of conviction upon the ground, inter alia, that she was denied the effective assistance of counsel. A client who voluntarily testifies to a privileged matter (People v Shapiro, 308 NY 453, 128 NE2d 559; People v Marsh, 59 AD2d 623, 348 NYS2d 166; People v Northrop, 29 AD2d 895, 287 NYS2d 987), or who publicly discloses this matter (People v O'Connor, 85 AD2d 92, 447 NYS2d 553; Liberty Mut. Ins. Co. v Engels, 21 AD2d 808, 250 NYS2d 851) is deemed to have waived, by implication, the attorney-client privilege. A waiver can also be found where the client puts the subject matter of the privileged communication in issue (see, e.g., People v Edney, 39 NY2d 620, 385 NYS2d 23) or where invasion of the privilege is necessary to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital and necessary information (Connell v Bernstein-Macaulay, Inc., 407 F. Supp. 420; Hearn v Rhay, 68 F.R.D. 574).

Accordingly, in the case at bar, defendant waived her claim to attorney client privilege when she first raised the issue of the propriety of the advice given to her by her prior attorney. By submitting an affidavit in support of her motion and by her subsequent testimony at the hearing regarding the conversations she had with prior counsel and the advice he gave her, she waived any claim of privilege and prior counsel was, therefore, free to testify as to those conversations during the course of his representation of defendant.

At the hearing, defendant offered her own testimony as well as that of her mother to support her claim that she was given incorrect advice by her attorney, Emrah Artukmac, [*4]regarding the consequences of her guilty plea on her immigration status. Defendant testified that at the time that the final plea offer was first made to her by the People in late July 2009, she asked her attorney if she would be deported if she were to plead guilty. According to defendant's testimony, he told her that she would not be deported and that since the sentence that was to be recommended by the People as part of the plea agreement was going to be less than a year in prison, she "would be fine." Defendant denied any knowledge that the purpose of the final one week adjournment of her case was to obtain advice from an immigration attorney regarding the potential consequences of her plea.

Defendant also called her mother as a witness. Although defendant's mother testified regarding conversations with Artukmac in which he advised her that her daughter would not be deported if she accepted the plea offer, her testimony was inconsistent with other credible testimony during the hearing and vague and inconsistent on several other issues. For example, although Mrs. Sarihasan initially denied contacting an immigration attorney who had represented her in the past, Michael Zwaik, immediately after her daughter's arrest, when confronted on cross examination with a copy of an email from her to Zwaik, she acknowledged that she had in fact, contacted him within days of her daughter's arrest. Further, although Mrs. Sarihasan denied on cross examination having any further conversations with Zwaik after May of 2009, she was again confronted with an email that she sent to Zwaik on September 6, 2009, thanking him for the advice he gave to her daughter's criminal lawyer. Only after being confronted with this email did she acknowledge contacting Zwaik after her daughter's plea of guilty. At the conclusion of her mother's testimony, the defendant rested.

The People called Emrah Artukmac, Esq., the attorney who handled defendant's plea and sentence, as a witness. He testified that in May, 2009, he was contacted by the defendant's mother to discuss representing her daughter on an indictment pending before this Court. He was subsequently retained. He further testified that in late July, 2009, at an appearance before the Court, the People offered, for the first time, a negotiated plea whereby defendant would plead guilty to a reduced charge of Attempted Criminal Possession of a Weapon in the Second Degree and the People would recommend a sentence of six months in prison and five years post release supervision. According to Mr. Artukmac, a one week adjournment of the matter was requested so that he could speak directly with an immigration attorney that had represented defendant's family in the past and the family could consult with that attorney as well. After consultation with the immigration attorney, counsel testified that he advised defendant that as a result of her plea of guilty, she would definitely be placed in deportation proceedings but the question of whether or not she would be deported would be up to the Immigration Judge. According to counsel, he advised defendant that if she were to get married to a United States citizen, there was a possibility that she would not be deported or, more appropriately, removed from the United States.

Both the People and the defendant called expert witnesses on Immigration Law during the course of the hearing. The People's witness, Mitchell Zwaik, Esq., was the attorney who had previously represented defendant's family in obtaining their so-called "green card" after coming [*5]to the United States[FN3]. Defendant called Howard Brill, Esq., an immigration lawyer from Hempstead, New York.

Zwaik testified that he was first contacted by defendant's mother the day after defendant's arrest for the charges in this indictment. He noted that he advised defendant's mother that he did not do criminal work but gave her the names of several lawyers who did. He testified that during the course of several conversations with defendant's mother, he advised her that if defendant plead guilty to a firearms offense, she would be subject to mandatory detention under the immigration laws and that her ability to prevent deportation would be limited. He corroborated the testimony of Emrah Artukmac that Artukmac had contacted him to seek his advice regarding the immigration consequences of a plea of guilty to Attempted Criminal Possession of a Weapon in the Second Degree. He testified that he advised him, as he had advised defendant's mother, that a plea of guilty would result in mandatory detention with a limited ability to prevent her ultimate removal from this country.

The defendant called Howard Brill, Esq., as a rebuttal witness. While the testimony of the two expert witnesses was divergent in some respects, the two attorneys agreed on several significant points. Both agreed that defendant would be subject to mandatory detention along with deportation or removal proceedings after completion of her jail sentence for Attempted Criminal Possession of a Weapon in the Second Degree. Both attorneys agreed that defendant might avoid removal if she were to be married to a United States citizen.[FN4] Finally, both attorneys agreed that it would be the Immigration Judge who would determine whether the crime to which defendant plead guilty, Attempted Criminal Possession of a Weapon, was what the Immigration laws call an "aggravated felony." Counsel were in agreement that if defendant were found to have plead guilty to an "aggravated felony", that would seriously limit if not eliminate, her ability to prevent her deportation or removal. On cross examination, defendant's expert testified that in reaching the determination as to whether defendant's conviction was for an aggravated felony, the Immigration Judge would look at a number of factors including, inter alia, the length of the sentence imposed and whether or not this conviction was a first offense for the defendant.

Finally, as previously noted, the parties stipulated regarding the admission, without conceding the truth or falsity thereof, of the testimony of Assistant District Attorney Anne Mayer, who appeared on behalf of the People on the court date immediately prior to the date when defendant plead guilty. Her testimony would have been that on that date, she marked the file as follows: [*6]

Conveyed new offer of six and five, Attempted Criminal Possession Second.

She's interested. However, wants one week to discuss ramifications with immigration attorney. Next court date August 3rd, 2009.

After listening to the testimony of the witnesses and reviewing the items admitted into evidence, the application by defendant for an order vacating her judgment of conviction upon the ground that she was denied the effective assistance of counsel must be denied. In reaching this conclusion, the Court credits the testimony of Emrah Artukmac, who testified that prior to taking the plea in this case, he advised her that she would be subject to mandatory detention upon completion of her sentence and that she would have limited ability to challenge her ultimate deportation. In addition, he advised her that if she were to marry an American citizen, she might be able to apply for asylum and there would be a possibility that she would not be deported. Counsel's testimony was supported by the testimony of immigration attorney Michael Zwaik. He told the Court that he had at least one telephone conversation with defendant's attorney regarding the immigration consequences of her plea and his advice to him was consistent with the advice that was given to defendant.

In denying defendant's motion, the Court must reiterate that before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel." (McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Strickland, 466 U.S., at 686, 104 S.Ct. 2052). Under Strickland, the Court must determine whether counsel's representation "fell below an objective standard of reasonableness." (466 U.S., at 688, 104 S.Ct. 2052).[FN5] And, the Supreme Court has held that "(t)he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Id., at 688, 104 S.Ct. 2052). The Supreme Court has only recently determined that the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation" (Kentucky v. Padilla, supra ). In reaching that conclusion, however, the Court recognized that the task of giving correct and complete advice is often difficult. "Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences." (Kentucky v. Padilla, supra at p. 1483).

Here, the expert testimony at the hearing established that prior counsel for defendant [*7]correctly advised defendant that her plea would subject her to mandatory confinement and deportation proceedings. He also correctly advised her that her ability to avoid deportation or removal would be limited. He further correctly advised her of one potential manner in which she might avoid removal and that would be marriage to a United States citizen. Certainly, it cannot be said that defense counsel did not advise defendant that the pending charges would carry the risk of adverse immigration consequences as the Supreme Court in Kentucky v. Padilla, has required. Indeed, under the circumstances, the testimony at the hearing establishes that he gave her appropriate advice regarding the immigration consequences of the charges against her as well as the charge to which she ultimately plead guilty.

Accordingly, defendant's motion is in all respects denied.

DATED: 25 OCTOBER 2010

_____________________________

J.S.C. Footnotes

Footnote 1:The record should reflect that the Court did inquire of defendant if she had fully discussed this guilty plea with her attorney prior to entering it to which she responded that she had. The Court further inquired whether she understood that by pleading guilty she was waiving her right to present a defense in her case and she responded that she did indeed understand that.

Footnote 2:The United States Supreme Court has recently held that the failure of trial counsel to inform a defendant of the potential immigration consequences of a plea of guilty constitutes a violation of defendant's Sixth Amendment right to counsel (Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473). However, in the case at bar, defendant alleges that prior counsel affirmatively misrepresented the immigration consequences, which the Court of Appeals has previously held, in People v. McDonald, violates a defendant's Sixth Amendment right to counsel.

Footnote 3: While there was conflicting testimony as to whether it was Zwaik or Congressman Tim Bishop's office that eventually obtained the green cards for defendant's family, there is no question that Zwaik had been retained by defendant's family for that purpose.

Footnote 4:Mr. Brill however testified that if the Immigration Judge determined that the marriage was for immigration purposes, that would have been a violation of federal law and would not have saved her from removal.

Footnote 5: In limiting its inquiry to this prong of the Strickland test, the Court is accepting as true, defendant's allegation that she would not have plead guilty had she known of the immigration consequences of her plea.